Details are sketchy, but NIMJ’s blog links to this Fayetteville Observer report that lawyers for military death row inmate Timothy Hennis have moved for a new trial and that a hearing has been tentatively set for late January, though Judge Parrish has not yet determined whether a hearing is necessary.

17 Responses to “Post-trial Article 39(a) apparently tentatively scheduled in Hennis case”

  1. Brian le Chien says:

    There is something off about an accused who, in one court, argues for the court to grant a new hearing, and in a second court, argues that the first court has no jurisdiction.

    Not saying I wouldn’t try everything too, but it is a tad humorous (emphasis on the “tad”).

  2. Southern Defense Counsel says:

    In light of Savard, doesn’t Col Parrish have to grant oral argument under 905(h)?

  3. Anonymous says:

    SDC, interesting question. I wonder if Savard and 905(h) do not apply to post-trial Article 39(a) sessions, since Chapter 9 of the RCMs explicitly deal with Trial Procedures Through Findings?

  4. Anonymous says:

    Anon 0745 is spot on.

  5. Anon says:

    I think the last sentence of R.C.M. 1101(b)(2) would require one, which states that the military judge “shall give each party an opportunity to be heard on the matter in a post-trial Article 39(a) session.” The structure of the paragraph looks like that requirement applies to any type of post-trial finding the military judge might make, to include mistrial/new trial. Unlike R.C.M. 905(h), it does not give the parties a right to an evidentiary hearing, only “an opportunity to be heard.”

    Thoughts?

  6. Southern Defense Counsel says:

    Interesting take, Anon 0745, however, RCM 905 allows for reconsideration of any ruling by the military judge prior to authentication, which would indicate to me that the 900 series can have application (particularly WRT motions) even after findings. I think that the MJ walks a thin line in denying a hearing on a motion post Savard.

  7. Southern Defense Counsel says:

    Anon 0938, I think that the subordinate wording of “such a finding” logically relates to a finding of not guilty, and not necessarily a motion for a new trial, given the prior sentence in the rule. That said, if I were Hennis’ counsel I would say that you could make a non-frivolous argument that your reading is accurate.

  8. Dew_Process says:

    Brian – don’t forget that this is a capital case and “death is different.” But, the habeas is that there simply was no UCMJ jurisdiction over Hennis under Hirschberg. But, the defense needs to cover their butts due to issues arising post-trial.

    This is a case where a good TC would be urging that the hearing be held. Much of the forensic testing was done by the NC SBI crime lab, which was seriously discredited post-trial in Hennis, as falsifying test results, etc.

    If they don’t do it now, they’ll be doing it down the road in a DuBay hearing.

  9. Objection says:

    Is is commom to ask the prosecution to turn over any new evidence in a Post Trial (39)a? The news article mentioned that a second motion was submitted requesting this.

    Thanks

  10. Dew_Process says:

    Objection — I would say that is is not common for post-trial discovery motions to be brought. But, there are two unique factors involved. First, the defense requested independent re-testing of some DNA evidence prior to trial, which was denied (essentially because the MJ was afraid it might delay the trial); and second, after the trial, the “scandal” at the SBI Crime Lab broke and one of the key individuals involved there, had been a key figure in analyzing some of the physical evidence in Hennis.

    Thus, the confluence coupled with the fact that it’s a death penalty case, prompted the post-trial motions.

    DISCLAIMER: (Which I should have noted above): I am a consultant on the habeas litigation.

  11. Objection says:

    Dew_Process – Thanks. I have a Disclaimer too, but prefer not to mention it. The DNA testing request by the defense prior to trial really was not denied out of fear of delaying the trial but as one prosector said: “We’re not in the business of chasing phantom killers” and the judge fell for it.

    I’m aware of the SBI troubles; however, that would not result in ‘new’ evidence by the prosection.

    Your time is appreciated.

  12. Dew_Process says:

    Objection — no problem. I was aware of the “phantom killer” argument, even though the individuals’ identities were known prior to trial, so it wouldn’t have been a major deal AND may have been Brady/Kyles material.

    The SBI issue is more or less based upon the facts that the Defense cannot get access to the SBI information without the affirmative actions of the Trial Counsel/government. Since the military made some use of SBI tested materials [and had some re-tested by USACIL], there’s no other way except a Court Order for the defense to get access to that material to see if any of the SBI related evidence was “tainted” or what caused them to have USACIL retest some of the evidence.

    Knowing the number of DNA “exonerations” to date [239], why the TC fought (and is fighting this) seems silly at best. But then again, “bragging rights” over a DP are apparently more important.

  13. Objection says:

    Dew_Process – Thanks. Also, none of the DNA results have ever been run through CODIS – it should be.

  14. Objection says:

    I felt that the “phantom killer” argument had to do with unknown male DNA results; meaning the TC really thought it was a waste of time to find out who the unknown profiles belonged to.

    Thanks.

  15. Dew_Process says:

    Objection — let’s assume you’re correct on the “phantom killer” issue (who knows what the TC was thinking), USACIL could do a CODIS search without any real effort and probably in a day or two. If you’re TC, what’s the downside? If there’s no match in CODIS (or the 2 “viable” suspects), that takes one argument away from the Accused. If there IS a match, then MAYBE you’re prosecuting the wrong man?

    There should be NO margin of error if you are seeking the death penalty and the MJ should have granted it. But, then again…

  16. Objection says:

    Dew_Process

    You’re correct!!

  17. Objection says:

    Dew_Process:

    Can you explain your statement on DNA results below? Which DNA results?

    >>individuals’ identities were known prior to trial<<

    Thanks